June 1, 2006

Says Bryan Rubino, a glass-blowing artist who is being sued by the glass-blowing artist, Dale Chihuly. (Rubino worked for Chihuly for 14 years.) "If anything, Mother Nature should be suing Dale Chihuly."

The suit, rare in art circles, offers a sometimes unflattering glimpse at how high-powered commercial artists like Mr. Chihuly work. The two glass blowers say that he has very little to do with much of the art, and that he sometimes buys objects and puts the Chihuly name on them, a contention that Mr. Chihuly strongly denies.

He acknowledges that he has not blown glass for 27 years, dating from a surfing accident that cost him the full range of shoulder motion, an injury that struck three years after he had lost sight in his left eye in a traffic accident.

Still, Mr. Chihuly said, he works with sketches, faxes and through exhortation. Nothing with his name on it ever came from anyone but himself, he said....

...Mr. Chihuly called Mr. Rubino a "gaffer," a term for a glassblower who labors around a furnace at the instruction of an artist. Asked to assess Mr. Rubino, Mr. Chihuly said, "He was an excellent craftsman" with little vision of his own.

Why is this a copyright case and not a contracts case? If Chihuly hired Rubino and kept him on for 14 years, why did he he never make Rubino sign a contract that would have limited Rubino from making similar shapes to sell on his own?

Bonus photo: a closeup of the big Chihuly sculpture at the Milwaukee Art Museum, taken last Saturday:

There is a signature look to the work. It's impossible for me to tell from the linked article how close to Chihuly's Rubino's designs are. This article gives some more context:

Chihuly sued Rubino and Redmond art entrepreneur Robert Kaindl in October, accusing them of copying his designs and selling "knockoffs" at several local galleries. Last week, Chihuly alleged in court documents that the two had pored over books of Chihuly's works and picked out designs that Rubino would make for Kaindl to sell....

...Rubino says he created or co-authored some of the works that Chihuly is suing to protect, and that some of the work he did for the artist was done "without any creative input whatsoever from (Chihuly Inc.) or Dale Chihuly."

As evidence, Rubino submitted a fax he says he received from Chihuly. The fax includes sticklike drawings and the following instructions: "Here's a little sketch but make whatever you want. We'll get everything up to Tacoma when you're done and I'll try to come down while you're blowing. Till then, Chihuly."...

Rubino is asking the court to declare him a co-author of some of Chihuly's more famous pieces, and award him profits associated with those works.

Chihuly acknowledged in his suit that "Rubino worked on virtually every series created by Chihuly." But he claimed that Rubino signed away any rights to the work when he was Chihuly's employee, and that as a contractor, all of the work Rubino made for Chihuly was done under Chihuly's direction and control.

So what do you think, copyright experts? I'm guessing that it's rather obvious that the "work for hire" Rubino did for Chihuly makes him not a co-author and that this claim is a bargaining chip in the litigation process. Rubino just wants to be able to sell his own work now, even though it's similar to the work he did with Chihuly. Should he win on that claim? Artists are always copying each other's styles. It's disturbing to think that they should have to worry about being sued by the more successful artists who came before them. The old could prey on the young mercilessly, and the development of artistic styles would be crippled by litigious artists.

Chihuly's designs are way too distinctive to make me buy Rubino's argument that they are nothing more than nature's design. Chihuly may like to say that he's inspired by the sea, but these swirls and curlicues don't look much like any sea I've ever gazed upon. But perhaps his designs come quite directly from the inherent limitations of glassblowing, the traditional techniques of the craft, and the decision to work very large. If so, Chihuly is trying to monopolize the field of art glass.

"Chihuly may like to say that he's inspired by the sea, but these swirls and curlicues don't look much like any sea I've ever gazed upon."

Well, they do look sea-like to me. The long tubular things look like eels or other tubular things. As I recall there are tubular organisms that grow near underwater volcanoes. And the bulbous looking thing looks vaguely like a quid or octopus.

But, were I to look at the sculpture without the context of your comments about the sea, or your use of quotations which reference the sea, I don't know that I would have picked up on the oceanic allusion.

Dave: I've looked at the sculpture at the Milwaukee Art Museum many times, and I never thought of the see. I saw glass in decorative curly shapes. If I thought of anything, it would be a monster from outer space.

Jennifer: "I had no idea that Chihuly didn't blow his own sculptures." Right. Who did? He's publicizing the information himself by bringing the lawsuit. Plus, he's bullying another artist. Even if his claim is sound, it might not have been wise to sue.

I see many problems for Chihuly. In my experience, a "work made for hire" agreement is one of the easiest agreements to find void ab initio. For an independent contractor there are lots of requirements and exceptions in the statute.

Even if Chihuly prevails and shows that Rubino was bound by a work made for hire agreement, he still may not be able to prove copyright infringement. Chihuly may have developed a distinctive style of blowing glass but the style is not copyrightable, only the specific expressions of that style (the individual pieces) are copyrightable.

Copyright policy is not to protect an artist’s ‘signature style’ but to reward the artist for creating individual works. Just as Picasso cannot sue all cubists, Chihuly shouldn't be able to prevent glass artists from making "lopsided creations, and other designs inspired by the sea."

You can see examples of Rubino's work at http://www.rubinoglass.com/

You can find more information here: http://www.nytimes.com/2006/06/01/us/01glass.html?_r=1&hp&ex=1149134400&en=d7158bc9e9667ce3&ei=5094&partner=homepage&oref=slogin

Jennifer: "I had no idea that Chihuly didn't blow his own sculptures." Right. Who did?

To be fair, he's always been upfront about that and any story I've seen about him mentions it. If someone only recognizes the name Chihuly as that "glass guy" they might have missed this fact, but it's never been hidden information. I've always known about him missing an eye, but didn't know about the surfing accident.

Having said that, I just took a look at his website bio and while it emphasizes his "notion of collaborative teams" it doesn't specify why this was necessary. His bio links to two other bios, only one of which mentions his injuries.

Maybe he's not upfront as I seem to think, just that--for whatever reason--as long as I've known the name Chihuly I've known most of his work as been directed.

Madison connection: "entered the graduate program in glassblowing at the University of Wisconsin in Madison."

The fact that Chihuly did not blow his own glass was know. Chihuly sells videos of his work being created. The videos show him bustling around and pointing while the gaffers are doing intense manual labor.

The glass blowing process, especially on the scale of some of Chihuly's works, is incredibly labor intensive. The videos show two or three guys suporting the weight of the glass while it is being worked.

Seriously, why not just add a little sticker with "d'apres Chihuly" and solve the whole problem? There are plenty of artists who live by making cheap, decent reproductions of classics. Have these people never seen "Antiques Road Show"?

"The article calls the sculptures multidimensional. Feh. Isn't all glass sculpture just 3-D?"

To be pedantic: everything is multidimensional, that is, has more than one dimension. One dimensional items, while theoretical, don't appear in nature (even an atom and its constituent parts have dimensions).

What about paintings, someone will cry. Well, again, those are very much multidimensional, in that they have height, width, and, of course, depth, in the form of the layers of paint put on the canvas.

The point being, that everything has more than one dimension, and, is therefore multidimensional.

As I say, I'm being a bit of a pedant here, but if there is something I hate, it is the vacuity and incoherence with which art writers write about art.

We have two Chihuly glass objects at my place of employment, and they remind me of alien plant life from comic books or movies. In fact, I put together a "separated at birth" page for the objects when we received them, comparing them to Audrey Jr. from Little Shop of Horrors, and those seed shooting plants from the "Day of the Triffids."

Oh, Chihuly's an alum? Would I have slanted my post differently had I noticed that??

About the lawsuit publicizing that he doesn't do his own work, but merely directs others. I'm not suggesting that was a secret, only that it was something people weren't thinking about or focusing on. Rubino is now motivated to emphasize how important his own role was, how it involved design, etc. This is hurtful to Chihuly's reputation, even if he wins. I'm just saying that you have to think through everything before suing. You may feel aggrieved, but you have to picture what the opponent will throw back at you. Someone who never would have sued you will now come up with defenses and counterclaims, and there will be articles like this one on the front page of the NYT.

Oh, Chihuly's an alum? Would I have slanted my post differently had I noticed that??I doubt it. And it was almost 40 years ago.

About the lawsuit publicizing that he doesn't do his own work, but merely directs others. I'm not suggesting that was a secret, only that it was something people weren't thinking about or focusing on.Still, I think the conversation was about to get sidetracked about how this was a deep, dark secret. It wasn't, back to the lawsuit.

Rubino is now motivated to emphasize how important his own role was, how it involved design, etc. This is hurtful to Chihuly's reputation, even if he wins.Definately agree. I think it will cause people to wonder how much involvement Chihuly had and to question what they pay for a Chihuly. It isn't hard to find work as well done as Chihuly and selling for maybe a quarter of the price. His name is worth a lot and I think his prices will be affected.

I suspect, depending on the project or individual piece, Chihuly's actual involvement would differ. For a 14-year employee like Rubino, Chihuly probably felt he could send a vague sketch and be confident that Rubino was fully inculcated in the Chihuly system to create a "Chihuly." Where credit belongs will be an interesting decision.

Didn't many of the great masters operate in a similar way with their students?

In a less artistic example, Thomas Kinkade is someone who probably has all the copyright issues covered:Kinkade's divine yet technical inspiration was the perfection of a process by which an original oil painting — he creates a dozen new images a year — is digitally photographed, transferred onto a plastic-like surface and glued onto canvas. Each print visits "highlight artists," mostly Hispanic and Asian hourly workers. In a paint-by-number style, they add a dot of red to a tree here, a dash of white to an interior light there....There are nine versions of each reproduced image, from Standard Numbered editions, for a few hundred dollars, to Studio Proofs that feature a textured canvas, more highlighting and Kinkade's machine-etched signature — compete with his DNA, courtesy of mixing the ink with the painter's hair and blood.

Ann: "Why is this a copyright case and not a contracts case? If Chihuly hired Rubino and kept him on for 14 years, why did he he never make Rubino sign a contract that would have limited Rubino from making similar shapes to sell on his own?"

Interesting questions, Ann.

As you know, employers cannot use contracts to prevent their former employees from using general skills or knowledge that they have acquired in their employment. So it seems to me that Chihuly would not be able to prevent Rubino from working as a glassblower. The issue would be whether Chihuly could restrict Rubino's glassblowing in any meaningful way while passing judicial muster. The test for covenants not to compete is "reasonability,"

Restictions usually fall into three categories: geographic, temporal, and subject matter. Chihuly would not benefit much from a geographic restriction ("you can't make glass sculptures in California") and any meaningful temporal restrictions would likely be unreasonable ("you can't blow glass for 10 years"). Would he be able to describe the subject matter of his sculptures with sufficient precision to craft a meaningful constraint on Rubino? Maybe. Would a court think that is reasonable? Hmm. I don't remember ever seeing a case quite like the one you imagine. Sounds like a good exam question.

You might want to check out Satava v. Lowry, in which one artist who made glass jellyfish sued another unsuccessfully for copyright infringement because, in short, the natural forms from which the sculptures were derived were not copyrightable. You can see a bit about the case, along with appropriate links, at: http://lawwww.cwru.edu/faculty/friedman/raw/index.asp?rssId=361

Thanks, Gordon. I was looking negatively on Chihuly's copyright claim because of what I perceived as a failure to protect his interests by contract. But if, in fact, courts are very hard on such contracts, it may not be worth doing. Should I look favorably on Chihuly for not trying to constrain Rubino? It may be that he was cool with Rubino going about his glass-blowing business, but Rubino went over the line and took advantage of Chihuly's reputation. In that theory, the failure to make a contract helps Chihuly's side.

Thanks, Gordon. I was looking negatively on Chihuly's copyright claim because of what I perceived as a failure to protect his interests by contract. But if, in fact, courts are very hard on such contracts, it may not be worth doing. Should I look favorably on Chihuly for not trying to constrain Rubino? It may be that he was cool with Rubino going about his glass-blowing business, but Rubino went over the line and took advantage of Chihuly's reputation. In that theory, the failure to make a contract helps Chihuly's side.

Peter: The jellyfish case is discussed in the first linked article. I think it accounts for Rubino's "sea argument," which sounds rather foolish on its face. Basically, the sea inspiration with respect to Chihuly is a lot more removed from the final work of art.

Yeah, to quote from the case (found at the link Peter gave): "Because the quantum of originality Satava added in combining these standard and stereotyped elements must be considered 'trivial' under our case law, Satava cannot prevent other artists from combining them."

The difference between the sea and Chihuly's sculpture is scarcely trivial!

If you've ever been in the lobby of the Bellagio Resort & Casino in Las Vegas, you've seen some "Chihuly" work. It's all along the ceiling there.

Others have oohed and ahhed it, but while pretty, it didn't impress me as something the artist deliberately aimed for - too abstract for that. There wasn't anything you could point at and say, "if that had been a little different, it wouldn't have looked good."

Ann, I'm not sure you can infer much for either side from the absence of a covenant not to compete in this case. But I would be interested to know whether Chihuly is employing them now that he has encountered this problem.

I'm not so sure Chihuly's sea inspiration is as far removed from nature as you might think. There's the orchid sculpture by Chihuly I put a photo of on my site that looks pretty real to me. As to his "sea-forms"--here's a sea anemone:http://www.cyhaus.com/marine/corals/anemone2.jpg

I am reminded of Harold Bloom's theory of the "anxiety of influence," under which modern poets (beginning with Milton) labor, those "tensions and anxieties, hostilities and inadequacies writers feel when they confront not only the achievements of their predecessors but the traditions of genre, style, and metaphor that they inherit from such ‘forefathers.'" How, in a tradition based on a shared tradition of sources, all those historical, biblical, and mythological images, become an individual, creative work that continues the line of literary tradition? Is Rubino a failed Chihuly, or does Rubino extend the life of Chihuly through a new line of tradition? Law suits sure throw a curve into the whole literary theory process.

There was a short note in the new Reason about the lack of copyright and the fashion industry, and how quickly knockoffs of designer work gets into the mass market. They argue that this spurs innovation, since part of the value isn't just the intrinsic aesthetic value of the work - it's being the new new thing from a famous designer. IANAL, but doesn't something similar apply here?

Think back to the Project Runway blogging. Some of the designs were downgraded for being imitative, but no one talked about that being a legal problem.

It seems to me that as long as Rubino isn't passing his work off as Chihuly's he would be legally in the clear in my ideal world (again, IANAL).

Chihuly isn't just inspired by the sea, anyway. As it happens, last month I went to a wedding in St. Louis and blogged a bunch of his work that's in the Missouri Botanical Garden. Pics here and here and gallery here (mostly but not entirely Chihuly).

From a synopsis of Donald Cuspit’s “Chihuly” (http://www.campusi.com/isbn_0810963736.htm):

“Chihuly's oeuvre is notable for its vibrancy of color, the boldness of its shape and execution, and, in recent years, its studied mimicry of natural forms, from cacti to seaweed and jellyfish.”

And then there’s this site from the Monterey Bay Aquarium (http://www.digitizethis.com/travelogue/monterey_aquarium/index.html), a pictorial travelogue of the sea that includes one Chihuly piece (http://www.digitizethis.com/travelogue/monterey_aquarium/images/aqua_chihuly_lg.jpg) that to my eye (as, no doubt the site’s authors intended) is virtually indistinguishable from undersea life forms.

But, damn, I have always liked Chihuly's work! When I see blown glass I can always tell when I'm looking at a Chihuly. His style is vividly present in his work. His site specific stuff (eg King David's Tower in Jerusalem in 2000) is especially thrilling.

The fault Chihuly finds in Rubino's work may or may not be lawyer-able. It seems to me like the suit is being brought as part of a larger personal battle between the two. 14 years of working that intimately together - you can brew brew a pretty thick stew of emotions in that time. The lawsuit seems like Dale is trying to stuff an emotional square through a legalistic hole.

I've wondered whether the courts' failure to enforce a copyright in clothing design is what led to designer names and logos being displayed on the outside of clothing and other products. Symbols like the "Polo" pony and designer names are protected by copyright (although it is impossible to eliminate illegal knockoffs).

Thus, people could no longer clearly signal status through superior cut and design, but had to turn themselves into advertisements for designers and clothing companies.

1. My workplace has 3 Chihuly pieces in the lobby, a montrous grouping. They appear to be giant viruses, ready to cause one to cough violently or ache all over. So each day I hustle past it, lest I become febrile or develop open sores. I want to create an installation across from it, a large friendly White Blood Cell, just for balance. On other days, Chihuly's piece seems not some fierce contagion, but a biopsy bound to be followed by the words, "I'm afraid I have some very bad news."

2. The Chihuly mass production method makes me think it's the Franklin Mint Collection for the very rich. Like junk jewlry or a Thomas Kincaid for the alpha businesses and fashionistas, their sheer expense far outweighs their value. But to own one is a signal of prestige, it appears. Is it art? I'd like Mr. Wolfe's opinion.

3. So Rubino doing knock-offs of his own prior work will likely be decided against him, largely for reasons I'll never comprehend. Maybe he'd fare better if he called it an homage.

All these postings and not one reference to the statute, 17 U.S.C. sec. 101, which defines "work made for hire" as being made either by an employee in the scope of his employment or a commissioned work subject to a written agreement that the work is a work made for hire.

Absent a written agreement, Chihuly will have to prove Rubino's work was made as an employee of Chihuly and in the scope of Rubino's employment. If Chihuly supplied all the materials, workspace, directed the manner of performance and did a number of other things more familiar to the employment law practitioners out there, Chihuly might have a case.

If you didn't like that last answer, there's always a trademark infringement (Lanham Act) claim if Rubino is selling the blown glass products in interstate commerce falsely attributed as being those of another. See 15 U.S.C. sec. 1125(a)(1).

Registration of the mark "CHIHULY" is not a prerequisite to suit under the Lanham Act.

Chihuly says he gave a "little sketch" to Rubino and Ribino did the rest. How much of the final work depended on the "little sketch" and how much depended on Rubino's creativity and technical skill? Is Chihuly or Rubino the artist who created the work?

If I were Chihuly, I would be worried about lawsuits brought by angry art lovers who thought they were buying a work created by Chihuly.

The first time I saw one of Chihuly's works was on a tour of the Mayo Clinic. The people showing me around made a big deal about it, but I could only think that this fellow Chihuly's name reminded me of Jeff Gillooly, Tanya Harding's former boyfriend who whacked Nancy Kerrigan on the knee, and when I looked at the odd glass sculpture on the ceiling, I thought it looked rather like what a Frank Stella work might look like if glass were Frank Stella's medium. I wasn't too impressed, but it did make me wonder what had ever become of Jeff and Tanya (not that I really cared).

Your point, though a historical and not a legal one, has legal significance. The collaborative nature of the production of art in the Renaissance predates copyright protection. In fact, there's plenty of scholarship showing that it is precisely rise of the Romantic notion of the solitary, divinely-inspired creator in the 18th Century that provided the impetus to enact the copyright laws. See, e.g. http://home.case.edu/~ijd3/authorship/

It is precisely the tension between the collaborative nature of all creation and copyright law's incarnation of the Romantic ideal of the lone creator that has everybody's dander up these days and makes this article front page news in the New York Times.

LOL. A good way to resolve lawsuits. I'm sure it affects juries. When I was a law clerk, we had a big trial about the book/movie "Altered States," which a man who worked with Paddy Chayevsky claimed to be a co-author of. Unfortunately, Chayevsky had already died by the time we went to trial, so we didn't get the showdown of annoyingness it could have been. (How did it come out? Halfway through, the widow decided to settle, even though her husband died refusing ever to settle.)

This lawsuit filed by Dale Chihuly against two other glass artists is unbelievably shortsighted and self-serving.

Not in the best interest of any Glass Artist or Artist for that matter.

A bit of history….There was a time in Murano Italy that Glass Blowing and the techniques were heavily guarded secrets to be taken to the grave. Families passed the craft down to each generation…if a family member tried to take the Murano glass techniques to outsiders they would be killed. I wonder what the Italians are feeling of the mass exodus of glass secrets now. It seems that Chihuly feels he is the one with the "original" secret now and he has decided that he exclusively should have a monopoly on the entire Art Glass industry, but apparently now instead of killing his competition he bleeds them dry via exceptionally frivolous lawsuits.

Chihuly appears to be a threatened arrogant fool. Apparently Chihuly feels that all eyes are on him and that the spin doctors of his publishing company are exercising creative expression to redeploy his amazing marketing abilities. He is the beginning of all inspiration. The entire case is ridiculous! Who does this man Chihuly think he is…and why has this lawsuit and media circus gone on this long? Has any one thought to ask where Chihuly learned the craft…Murano!!! Back in 1894, Louis Comfort Tiffany created a series called “The Persian” of which has a strikingly resemblance to Chihuly’s so called original Persian series. Why would he even change the name, look, or the design?

The Chihuly secrets that "will" be exposed will undermine the Chihuly empire and should expose him for who he really is. And if he continues to pursue this lawsuit I am sure that the collateral damage will continue to mount against Chihuly's empire and cause him to lose much much more than just this case.

Chihuly is not looking out for my best interest as an artist of glass. If I want to then I am. Maybe Chihuly will then sue me and make me popular too. Regarding www.chihulyscrewedme.com? I have researched as much as can be verified and my findings are that all the information was accurate. Granted, the platform is over the top and probably discredits the point with the rants of the site although interesting reading that gives interesting considerations that support interesting findings. That I for one now believe and have proven to be correct to myself.

Clearly, I have a strong opinion in this matter and it appears that more and more artists and collectors are changing their opinion and direction as accurate information regarding Kaindl, his Art Glass and this case are being over publicized.